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Justice Roberts and His Secret FISA Court

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  • Strongly Liberal Democrat
    Portland, OR
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    While most of the attention about the federal governments massive data collection of ordinary American's has been focused on what President Obama has or hasn't done, the New York Times recently published an eye-opening article about the real person that is behind the court that rubber stamps these government programs and the politicized role that it has taken in recent years.

    In a nutshell, Chief Justice Roberts has used his authority as Chief Justice to shape the Foreign Intelligence Surveillance Court (FISA) in his image. Since its inception in 1978, Republican Chief Justices Warren E. Burger and William H. Rehnquist appointed a far more equal amount of left and right leaning judges to the secret court. That all changed in 2005 when Chief Justice Roberts took over the helm. Justice Roberts has taken the court on a hard right turn, with 86 percent of his appointees being Republicans. This might explains why it has become a rubber stamp with regards to infringing on American's right to privacy.

    Why is it that one individual has so much power over a secret court that American's know next to nothing about? Should the Chief Justice have the ability to make all of these appointments, or should we start listening to a growing chorus within our Congress to scale back the power that the Chief Justice has in shaping our nations national security?
  • Liberal Democrat
    Colorado Springs, CO
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    Ezra Klein reported on this two weeks ago on July 5th, but it didn't seem to get much traction in the rest of the mainstream media at the time (except the NYT). Maybe because it was the July 4th long holiday weekend.

    Ezra Klein, Washington Post, July 5, 2013: Did you know John Roberts is also chief justice of the NSA’s surveillance state?

    Quoting Klein:

    "The 11 FISA judges, chosen from throughout the federal bench for seven-year terms, are all appointed by the chief justice. In fact, every FISA judge currently serving was appointed by Roberts, who will continue making such appointments until he retires or dies. FISA judges don’t need confirmation — by Congress or anyone else.

    "No other part of U.S. law works this way. The chief justice can’t choose the judges who rule on health law, or preside over labor cases, or decide software patents. But when it comes to surveillance, the composition of the bench is entirely in his hands, and, as a result, so is the extent to which the National Security Agency and the Federal Bureau of Investigation can spy on citizens.

    "A Reuters investigation found that from 2001 to 2012, FISA judges approved 20,909 surveillance and property search warrants while rejecting only 10. Almost 1,000 of the approved requests required modification, and 26 were withdrawn by the government before a ruling. That’s a startling win rate for the government.

    "FISA judges decide the momentous questions of whom the government may spy on and how. Their power is awesome, and their word is final. As the great legal scholar Kanye West said, no one man should have all that power."

    Whatever Congress intended in granting the Chief Justice all this power, it hasn't worked out as intended. The system is broken as Roberts has loaded the FISA court with think alike cronies. However, what Congress has broken, Congress (and not the President) can fix. All it requires is the will. But this Congress has no will to fix anything...all they are obsessed with is sabotaging the Obama presidency so don't look for any changes any time soon.

    See also our Democratic Hub thread:
  • Democrat
    Philadelphia, PA
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    The article that you posted about I didn't read, but if what your saying about the FISA court and how it operates via the appointment like minded judges is true, that is very scary. I would think that if Congress does not act on our behalf (surprise, surprise) to prevent this Court from becoming overbearing in matters of personal privacy, perhaps the President can use his Executive Directive Authority to tamper down the authority ,what I call a rogue court.
  • Strongly Liberal
    Seattle, WA
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    Yes, and that's the reason Bush appointed Roberts as Chief Justice, because all FISA court members appointed by Roberts gave a rubber stamp approval to any wire tapping and spying the Bush NSA wanted to do.

    It makes you wonder why the Bush NSA often wire tapped and spied even without a FISA warrant, since their requests for warrants were always approved anyway. But it explains why the Obama NSA obtains warrants, because their requests are also get rubber stamp approval from a right-wing court that thinks like Roberts, Bush and Obama that the ends justifies any means and to hell with the fourth amendment.

    The fourth amendment was written before the discovery of electricity, so it wasn't until the 20th century that the amendment was interpreted to address things like wire tapping. It's been interpreted in different ways since then, but in 2001 the Supreme Court ruled that warrantless use of electronic surveillance technology "that is not in general public use" is unconstitutional when it violates a reasonable expectation of privacy in ways that would previously have required a physical search.

    To me, whether it is warrantless or with a warrant, that standard should be respected. The key words are that electronic surveillance is unconstitutional when it violates a reasonable expectation of privacy in ways that would previously have required a physical search -- since the fourth amendment provides "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

    Beyond that -- and even more important -- the FISA law and court system really ought to be repealed and amended so that FISA court members are nominated by a bipartisan congressional committee and approved by Congress, to at least attempt to ensure the court members are fair, impartial, and completely versed in Constitutional law.

    As it is, the FISA law and system is a terrible travesty and mistake.